In Save the Plastic Bag Coalition v. City and County of San Francisco, et al. (“Plastic Bag III”) (December 10, 2013), the First District Court of Appeal affirmed the Superior Court’s denial of a petition for a writ of mandate seeking to invalidate a 2012 San Francisco ordinance banning the use of plastic, single-use “checkout bags” (“2012 Ordinance”), and imposing a 10-cent charge for single-use paper and compostable plastic bags.

This is the third loss in a row for the Save the Plastic Bag Coalition (the “Coalition”), which has challenged plastic bag banning ordinances up and down the state under CEQA and on other grounds.  (See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155; Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209.)

In this iteration of the plastic bag wars, the court upheld San Francisco’s determination that its 2012 Ordinance was categorically exempt from CEQA review as an action taken to protect the environment. The court of appeal also found that the Coalition failed to present evidence sufficient to prove an exception to the categorical CEQA exemption due to the presence of “unusual circumstances.”

This case has several notable aspects. First, the court of appeal rejected the Coalition’s attempt to use a footnote in Manhattan Beach to prove its case that San Francisco could not rely on a categorical CEQA exemption.  The Coalition argued that the Manhattan Beach Court did not intend for a city larger than Manhattan Beach (pop. 33,852 according to the 2000 census, see Manhattan Beach, 52 Cal.4th at 162), like San Francisco, to be able to use a categorical CEQA exemption to implement a plastic bag ban.  To prove this point, the Coalition cited footnote 10, where the Court noted:  “According to plaintiff, the movement to ban plastic bags is a broad one, active at levels of government where an appropriately comprehensive environmental review will be required.”  (Id. at 174 fn. 10 (emphasis added).)  The court of appeal rejected this theory, however, explaining that “the term ‘comprehensive environmental review’ was not any part of the holding in Manhattan Beach.”  (Slip Opin. at 11.)

Second, the court of appeal held that San Francisco was not precluded from relying on categorical exemptions that apply to “regulatory actions” to cover a “legislative ordinance,” following the decision in County of Marin. (Slip Opin. at 12.)  Citing County of Marin, the court of appeals agreed with its sister panel that “although ordinances are always ‘legislative’ in character, they also may constitute regulations”, which the court found them to be in the instant case. (Id.)

Third, the court of appeal recognized a split in authority in whether to use the fair argument standard or the substantial evidence standard regarding factual determinations in deciding whether the unusual circumstances exception applies. The court of appeal “assume[d] without deciding that the fair argument standard applies.” (Slip Opin. at 16.)  To that end, the court found that the Coalition’s reliance on “life cycle studies” to prove its unusual circumstances argument was misplaced and that the studies did not constitute substantial evidence supporting the Coalition’s fair argument. (Slip Op. at 17.)

Finally, the court of appeal found that 2012 Ordinance’s $0.10 fee on single-use bags did not constitute a mitigation measure, but rather was properly characterized as part of the design of the project from its conception. (Slip Op. at 18.)

The Stoel Rives Environment, Land Use, and Natural Resources Group closely monitors CEQA decisions.  For more information, please contact Tom Henry (

Authored by Chelsea Huffman (